Is a Federal Law Restricting Abortion Constitutional?
Mike Rappaport
Spurred on by Lindsey Graham’s proposed abortion legislation many law professors, including our very own Mike Ramsey, are writing that Congress does not have the constitutional authority to prohibit abortions (or presumably to protect the right to abortion). I agree with Mike that the original meaning of Congress’s power under the Commerce Clause and the […]
Against the Major Questions Doctrine
Mike Rappaport
In a recent post, Mike Ramsey attempts to provide an originalist defense of the Major Questions Doctrine (MQD). While it is always risky to disagree with Mike about originalism, I feel compelled to voice my contrary views. Before discussing Mike’s view, let me state my basic objection to the MQD: It neither enforces the Constitution […]
How Many Law Professors Are Originalists?
Mike Rappaport
While the Supreme Court appears to have four originalists (Barrett, Gorsuch, Kavanaugh & Thomas) along with two fellow travelers (Alito & Roberts), how many originalists are there in the legal academy? Most people have the impression that relatively few professors are originalists, and a new survey of law professors suggests that impression is correct. In […]
Justice Kagan’s Dissent in West Virginia v. EPA
Mike Rappaport
I have some serious reservations about both the majority and the concurrence in West Virginia v. EPA. The major questions doctrine appears to be neither statutory nor constitutional originalism. But more on that in the future. Here I want to note two problems with Justice Kagan’s dissent. The first problem is Justice Kagan’s discussion of […]
Is Griswold in Accord with the Original Meaning?
Mike Rappaport
With the leak of Justice Alito's draft opinion overturning Roe v. Wade, many people have wondered whether the same reasoning would overturn Griswold v. Connecticut, which protected the right to purchase contraceptives. While I reject the justifications given in Griswold and Roe, I do believe that Griswold's result might be justified by the 14th Amendment's […]
More on the Independent State Legislatures View
Mike Rappaport
Recently, there has been a great deal written about the independent state legislature view – the view that the Constitution assigns to state legislatures (unconstrained by state constitutions) certain powers with respect to federal elections. I wrote about this a while back, and so I thought I would briefly discuss my prior post. My post […]
The Proper Way to Allow Expansions or Contractions of the Size of the Supreme Court
Mike Rappaport
Recently, many Democrats have been arguing for expanding the size of the Supreme Court. It is apparent to everyone that these calls would be an example of partisan court packing – that is, an attempt to change the decisions reached by the justices to conform to the existing President and Congress’s view. For example, the […]
What Does the Constitution Mean by a State Legislature?
Mike Rappaport
The Constitution’s multiple references to “state legislatures” raise difficult and significant issues. The main question is whether we can give a consistent answer to the meaning of this term across a large number of different constitutional clauses that both fits the constitutional text and gives a plausible answer. In […]
Stern and TerBeek on The History of Originalism
Mike Rappaport
Following the lead of Senator Ed Markey (who claims that “Originalism is racist. Originalism is sexist. Originalism is homophobic.”), Slate writer Mark Joseph Stern interviews Calvin TerBeek about his new article claiming that originalism is rooted in racism. There is so much that is problematic about this little interview that is hard to know where to […]
The State of Originalism 2021
Mike Rappaport
The Center for the Study of Constitutional Originalism at the University of San Diego has been holding an annual conference on originalism for the last 12 years. Each year at the beginning of the conference, I discuss what I regard as the most important events concerning originalism in the past year. Last year, on this […]